Volume 72 — Kansas Reports

<p>Error from Woodson district court; Oscar Foust, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Descents and Distributions — Real Estate — Alien Heirs. The provision of the original section 17 of the bill of rights of the state constitution, that “no distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property,” made the statute of descents and distributions apply to aliens as well as to citizens, and enabled the former to inherit real estate in Kansas.</p> <p>2. Title and Ownership — Adverse Possession. Where one entered upon land of an intestate under a deed from persons who in fact had no title but who were described therein as all of the intestate’s heirs, and afterward purchased the interest of a part of the true heirs under circumstances tending to show a recognition of their ownership, the fact that he then made unsuccessful efforts by advertisement in newspapers and otherwise to ascertain whether there were any other heirs is a circumstance from which a trial court is justified in finding that the possession of such occupant was not at that time adverse to the heirs who had not conveyed their interest to him, notwithstanding he was in complete control of the property, paying the taxes, making improvements and collecting the income without accounting to any one.</p> <p>3.--- Case Followed. The second paragraph of the syllabus in Russell v. Hallett, 23 Kan. 276, approved and followed.</p>

<p>Error from Lyon district court; Dennis Madden, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Pleading—One Cause of Action —Counts. A party cannot always anticipate what the testimony in a case may develop, and to meet the possible phases of the evidence he may sometimes state his cause of action in different counts.</p> <p>2. -Election of Counts. Where a plaintiff set up in his, petition three counts based on the same transaction, and at. the close of the testimony elected to stand on one of the: counts, and the case was submitted to the jury as a single-, cause of action, the refusal of the court to require an earlier election was not prejudicial error.</p> <p>3. Contracts — Provision for an Umpire Valid — Effect. A provision in a contract between a principal contractor and a subcontractor for the grading of a railroad that the work should be done under the supervision of the chief engineer of the former, who should make estimates as a basis for the payment of the work done, and that his decision as to all matters of dispute which arose between the parties should be final and conclusive, is valid; and the decision of such an umpire is prima facie conclusive upon all matters submitted to, and fairly and honestly decided by, him.</p> <p>4. - Fraud or Mistake of Umpire. If there be fraud or mistake so great and palpable as to imply bad faith, or the umpire fail fairly and honestly to perform the function assigned to him, his decision will have no binding force.</p> <p>5. - Subsequent Agreement. Nor will it bind if, by the subsequent agreement of the parties, the decision is not to be relied on, but other, fuller and correct estimates are to be made.</p> <p>6. - Remedy on the Contract. In either case a proceeding in equity to set aside the decision of the engineer is not a condition precedent to an action at law to recover the money due under the contract, where the work has been satisfactorily completed by the plaintiff and has been accepted by the defendant.</p> <p>7. -Interest of Unvpire. The fact that the chosen umpire was an employee of the defendant does not of itself weaken the force of his decision, but the law requires of a person so situated the utmost diligence and good faith in the performance of his duties.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Estoppel in Pais — Necessary Allegations in Pleading. A party pleading an estoppel in pais must show: (1) That the opposing party has made some representation inconsistent with his present position, with the intent to mislead the pleader; (2) that the representation so made was known by the maker to be false; (3) that the pleader did not know that the representation was false; (4) that he believed it to be true, and acted upon such belief.</p> <p>'2. Practice, Supreme Court — Defective Pleading — Evidence— General Verdict. Where several defenses were pleaded in the same answer, one of which was so defective that it was error to admit evidence in supp’ort thereof, but, nevertheless, the court, over the objection of the plaintiff, erroneously permitted testimony to be introduced tending to support such defense, and a general verdict was returned and a general judgment rendered thereon for the defendant, it cannot be said that such error was not prejudicial.</p>

<p>Error from Wyandotte district court; J. McCabe Mooee, judge.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. This was an action upon an ordinary fire-insurance policy to recover for loss and damage to a large quantity of wool which, it was alleged, was caused by fire. The Western Woolen-mill Company had about 30,000 pounds of wool stored in a warehouse in Topeka adjacent to its mill, where it was engaged in the manufacture of woolen cloth.

<p>Error from Allen district court; OSCAR Foust, judge.</p>

<p>Error from Wyandotte district court; E. L. Fischer, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Divorce — Permanent Alimony — Custody of the Children. The wife was granted a decree of divorce for the fault of the husband, and was given the custody of two young children. The court awarded her a farm of 100 acres, worth $2000, subject to an encumbrance of $300 and some back taxes. She had assisted in accumulating most of the property. The husband was given the custody of a son aged fifteen years, capable of assisting him in his work as a coal-miner, and was awarded a house worth $80; also, some other property of small value. Upon review this court cannot say from the evidence that the award to the wife was not just and reasonable.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — Nature of a Suit for Specific Performance. A suit to compel specific performance of an agreement to convey land is an action in personam, which can be tried wherever jurisdiction of the person of the defendant can be acquired.</p> <p>2. —-- Suit to Have a Deed Declared a Mortgage. As the issues were formed herein the suit was essentially one to have an instrument, which was in form a deed, adjudged to be a mortgage securing a debt, and for the cancelation of the same upon the payment of the debt, and the quieting óf the title of the mortgagor, rather than for specific performance of a contract to convey land.</p> <p>3. Evidence — Volunteer Witness — Credibility. The fact that a person may voluntarily come from another state and without process appear and testify in court does not impair his competency as a witness, nor necessarily deprive his testimony of probative force.</p> <p>4. Mortgages — Conveyance Held Not Absolute, but a Security. It is held, that the testimony is sufficient to show that the instrument in controversy was intended by the parties as a mortgage for security only, instead of an absolute transfer of title.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fraud — Sale of Bank Stock — Dividends—Evidence. Under the facts of this case the circumstance that dividends upon bank stock were declared in the years 1902 and 1903 from the collection and the sale of assets charged off the books of the bank long prior to the year 1900 was insufficient to prove that the value of such dividends attached to the stock in the year 1900.</p>

Gillett, judge. STATEMENT. IN this case the defendant, Edd Shaw, was arrested on a warrant which contained the charge “that on the -day of August, 1904, in Kingman county and state of Kansas, one Edd Shaw did unlawfully, feloniously forge, counterfeit and falsely make one certain written order for seventeen dollars, being and purporting to be signed by one J. H. Freeman and drawn on one E. S. Ratcliff, which order was made payable to said Edd Shaw and by him indorsed by…

<p>Appeal from Decatur district court; Abel C. T. Geiger, judge.</p>

Meckel, judge. STATEMENT. The appellant, with two others, was arrested on the charge of murder by procuring an abortion, and thereby causing the death of India E. Wilson. He was granted a separate trial, and was convicted of manslaughter in the second degree, under chapter 214 of the Laws of 1908. He appeals to this court.

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations —Ordinances—Penalites—Surplusage. Under a statute authorizing a city to punish the violation of its ordinances by fine only, the clause of an ordinance which attempts to provide a penalty of either fine or imprisonment is not thereby rendered entirely void, but the part relating to imprisonment may be treated as mere surplusage.</p> <p>2. Statutory Construction — Suppression of Billiard-tables Includes Pool-tables. A statute empowering cities to suppress billiard-tables, enacted while that term was applied to tables substantially the same as pool-tables of the present time, is sufficient authority for an ordinance forbidding the use of pool-tables.</p>

Moore, judge. statement. The defendants were tried jointly, and each was convicted on two counts for selling intoxicating liquors in violation of the prohibitory liquor law, at Peabody, on the 10th of September, 1904. The information contained seven counts, the first six charging unlawful sales and the seventh the maintenance of a nuisance.

<p>Original proceeding in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Evidence Properly Rejected— Relevancy Not Shown. Where an objection is sustained to a question propounded to a witness, and it is not apparent from the issues and condition of the proof at the time that the question is proper, such ruling will not be deemed erroneous unless it is made to appear, by offer of proof or otherwise, what facts are expected to be elicited by such question.</p> <p>2. Replevin — Recitals in Chattel Mortgages — Evidence. In an action of replevin, where the controversy consists of a dispute between the parties as to which of them is entitled to the possession of certain cattle, and each of them claims as mortgagee under different chattel mortgages, both of which were executed at different times by the owner of the cattle, the statements and recitals in one of the mortgages are not binding upon the holder of the other, and are not admissible as evidence against him.</p> <p>3. -Instructions. In the absence of a request to do so it is not error for a trial court to omit to instruct the jury upon special phases of the case, where proper general instructions have been given.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Injury to Stock — Effect of Fence Law. The fence law of 1868 (Gen. Stat. 1901, § 3071 et seq.) modified the common-law rule of liability for damages done by trespassing animals, and relieved the owner thereof from all liability for damages resulting therefrom, except trespasses committed on lands enclosed with the legal fence described in the act.</p> <p>2. - Herd. Law — Common Law. The herd law of 1872 (Gen. Stat. 1901, §7466 et seq.), where adopted, is a re-adoption of the common law in this respect as it existed prior to the enactment of the fence law of 1868.</p> <p>3. - Fence Law Inoperative Where Herd Law Exists. The fence law of 1868, which defines the kind of fence with which land must be enclosed before the owner can recover damages committed by trespassing stock, has no application for any purpose in counties where the herd law of 1872 has been adopted.</p>

Error from Wyandotte district court; E. L. Fischer, judge. STATEMENT. Ringo & Askew, residing in Oklahoma, gave their note for $10,209.63 to Ladd, Penny & Swazey, commission merchants, of Kansas City, due without grace June 14, 1900, secured by a mortgage on cattle, which was duly filed for record. The payees sold the note to the Watkins National Bank of Lawrence, which sent it for collection to the Inter-state National Bank at Kansas City a few days before its maturity.

<p>Error from Ellis district court; James H. Reeder, judge.</p>

Error from Sedgwick district court; David M. Dale, judge. STATEMENT. The plaintiff in error brought this action in the district court of Sedgwick county to recover damages for personal injuries alleged to have been received through the negligence of the defendant, its superintendent and foreman, while he, under the direction of the alleged foreman, was cutting a broken wire from a pole on defendant’s light line.

Error from Bourbon district court; Walter L. Simons, judge. STATEMENT. This was an action in ejectment for the recovery of a farm of 160 acres in Bourbon county, and for rents and profits. Defendant had judgment below and plaintiff brings error. The petition was in the ordinary form under the statute. The answer of defendant pleaded all his defenses in detail, and the reply was in substance a general denial.

<p>Error from Ellsworth district court; Rollin R. Rees, judge.</p>

Error from Wilson district court; Leander Still-well, judge. STATEMENT. Plaintiff brought this suit against Joel Griffin and wife to quiet the title to 160 acres of land in Wilson county. The case was tried by the court and defendants had judgment, of which plaintiff complains. On September 24, 1894, defendants owned the land :in fee.

<p>Error from Jackson district court; Marshall GepHART, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Prayer for Relief — Judgment. The demand of the plaintiff in his petition does not necessarily limit the court in the judgment which it may render. It is the case made by the pleadings and the facts proved, and not the prayer of the pleader, which measure the relief that the court may award.</p> <p>2. Contracts — Lease—Mistake—Reformation. A plaintiff alleged that the terms of a lease were agreed upon, but that advantage was taken of his infirmities and he was procured to sign a lease that did not conform to the agreement of the parties. He prayed for a cancelation of the leas.e, and there was also a prayer for general relief. Upon the testimony the court found that no fraud was intended, and that the nonconformity of the lease with the agreement was the result of an innocent mistake. Held, that it was within the power of •the court to reform the lease and make it conform to the understanding and agreement of the parties.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Boundaries—Special Act. The boundaries of a city cannot be changed by a special act of the legislature.</p> <p>2. Constitutional Law — Corporate Powers — General Statute Authorizing Special Laws. A general statute which attempts to confer upon special laws subsequently passed the effect of changing the boundaries of cities violates section 1 of article 12 of the constitution, and is void.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Fraud — Sale of Decedent’s Land by Executor to his Surety— Setting Aside. A sale of real estate belonging to the estate of a deceased testator, made by an executor to the surety on his bond under an order of the probate court procured through the fraud of the executor, may be set aside at the suit of a devisee, even although the surety was ignorant of the dishonest conduct of his principal.</p>

Error from Wyandotte district court; E. L. Fischer, judge. STATEMENT. Defendant in error sued to recover for personal injuries occasioned by the operation of a friction hoist used in raising and lowering beeves in a packing-house. The case was here once before, and was reversed for error in the instructions.

Error from Lyon district court; Dennis Madden, judge. STATEMENT. Action on an insurance policy issued on the life of Adolph Elison for $2000, running twenty years, with quarterly premiums of $13.96, his wife, Lizzie Elison, being named as beneficiary.

<p>Error from Rice district court; Jermain W. Brinckerhoff, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Personal Injury — Opinion Testimony of a Physician. In an action against a city for damages occasioned by an alleged fall upon a defective sidewalk, where plaintiff testified to the manner in which he fell and that the fall caused a rupture in the region of the groin, it was not error to refuse to permit a physician, who had not examined plaintiff’s injuries but who was present and heard part of plaintiff’s testimony, to give his opinion concerning the probability of a person’s being ruptured in the manner testified to by plaintiff.</p> <p>2. - Instructions — Defective Sidewalk — Contributory Negligence. In such a case, where the plaintiff was familiar with the defective condition of the walk but nevertheless attempted to use it in the dark, a certain instruction given was proper. (See p. 218.)</p> <p>3. Practice, Supreme Court — Failure to Pay Jury Fees Not an Error at the Trial. The failure of the successful party in a jury trial to pay jury fees in compliance with section 3056 of the General Statutes of 1901 does not affect the substantial rights of the defeated party, nor is it an error occurring at the trial which is raised by a motion for a new trial.</p>

Error from Franklin district court; Charles A. Smart, judge. STATEMENT.

<p>Appeal from Saline district court; Rollin R. Rees, judge.</p>

<p>Original proceeding in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Manslaughter — Killing in an “Unusual” Manner Not Proved. The evidence in this case is legally insufficient to establish a killing in an unusual manner, within the meaning of section 16 of the crimes act (Gen. Stat. 1901, § 2001), defining manslaughter in the second degree to be “the killing of a human being without a design to effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide.”</p>

<p>SYLLABUS BY THE COURT.</p> <p>Criminal Law — Indictment—Beginning of Prosecution — Limitation. Where an indictment is returned by a grand jury, and three days thereafter a warrant is issued upon which the defendant is arrested, the prosecution is to be deemed begun, for the purpose of stopping the running of the statute of limitations, from the time of the return of the indictment.</p>

<p>Original proceeding in quo warranto.</p>

<p>Appeal from Saline district court; Rollin R. Rees, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Criminal Law — Verdict—Sufficiency. Under section 239 of the code of criminal procedure (Gen. Stat. 1901, § 5684), a verdict is sufficient which finds defendant guilty of the principal acts that constitute the offense and then states the section of the crimes act in which the offense is defined, so that the court can determine from the verdict the grade or character of the offense.</p> <p>2. -Murder and Manslaughter Defined. Neither murder nor manslaughter is defined by the statutes of Kansas. These terms, as used in the crimes act, have the same meaning as at common law. Murder is the unlawful killing of a human being with malice aforethought. Manslaughter is the unlawful killing of a human being without malice.</p> <p>3. -Instruction Defining an Offense — -Words of Statute Not Imperative. It is no objection to an instruction defining an offense that the exact words of the statute are not used, where the instruction in plain language defines the offense and states the essential elements thereof.</p> <p>4. - Prosecution for Assault — Instructions—Homicide. In a prosecution under sections 38 and 42 of the crimes act (Gen. Stat. 1901, §§2023, 2027), where the jury are instructed in regard to murder and manslaughter, it is unnecessary to instruct upon the different degrees of murder or manslaughter.</p>

<p>Original proceeding in habeas corpus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Descents and Distributions — Realty—Resident Half-sister— Deceased Alien Parents. Resident citizen half-sisters of a resident citizen who died intestate, leaving neither widow nor children, and whose parents both died before him while non-resident aliens, inherit immediately and directly the lands of the deceased in this state.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Accident Insurance — Verdict Contrary to the Evidence. A fraternal order made a contract with a member to indemnify him in case of accident for injury sustained by violent means which should, “independently of all other causes, immediately, wholly and continuously prevent him from the prosecution of any and every kind of business pertaining to his occupation.” The insured, who was a wholesale grocer, swallowed a metal pin on July 23, 1902, which at once caused him much distress. He went to his place of business nearly every day until August 4, when he became wholly disabled. Between the dates mentioned he assisted in buying goods and selling them for future delivery, and attended to business in the usual manner, with the exception of two or three days. In his verified demand on the order for payment of indemnity he claimed a total disability from August 4. Held, that a finding by the jury that the insured was wholly and continuously disabled from attending to every kind of business pertaining to his occupation after July 23 was not sustained by the evidence. (See p. 306.)</p> <p>2. - Total Disability. The scope of the term “total disability,” used in contracts of indemnity against injury by accident, considered and discussed.</p> <p>3. -Immediate Disability. The word “immediately,” as applied to the language of the indemnity contract stated in the first paragraph of this syllabus’ is not synonymous with “instantly,” “at once,” and “without delay.” A disability is immediate, within the meaning of such contracts, when it follows directly from an accidental hurt, within such time as the processes of nature consume in bringing the person affected to a state of total incapacity to prosecute every kind of business pertaining to his occupation.</p> <p>SYLLABUS BY THE COURT.</p> <p>1. Practice, Supreme Court — Accident Insurance — Verdict and Evidence. Some expressions in the former opinion in this case are modified, and the rule of construction of the terms “total disability” and “immediately” announced therein, being applied to the policy of insurance and the facts in evidence, held, that this court cannot say that the evidence did not satisfy the conditions of the policy, or that the finding by the jury that the insured was wholly and continuously disabled from attending to every kind of business pertaining to his occupation after July 23 was not sustained by the evidence.</p> <p>2. Practice, District Court — Continuance. Where depositions are suppressed upon the ground that when received by the clerk through the mails the envelope enclosing them was found torn open, it is error for the court to refuse an application for a continuance, made immediately thereafter, which complies with the provisions of section 317 of the code of civil procedure (Gen. Stat. 1901, §4765), it appearing that the defective condition in which the depositions were received was not caused by any fault or neglect of the party taking the same.</p> <p>3. - Accident Insurance — Proof of Loss — Instruction. Proofs of loss in an action upon an accident-insurance policy are admissible to prove compliance with the conditions of the policy, but for no other purpose, and it is error to refuse an instruction limiting the scope and effect of such testimony.</p>

<p>Error from Jackson district court; MARSHALL Gephart, judge.</p>

Error from Greenwood district court; Granville P. Aikman, judge. STATEMENT. 'These two cases arise from one suit commenced in the district court of Greenwood county, Kansas.

<p>Error from Johnson district court; Winfield H. Sheldon, judge.</p>

<p>Error from Nemaha district court; William I. Stuart, judge.</p>

<p>Error from Edwards district court; Charles E. Lobdell, judge.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. Noble & Co., of Topeka, Kan., being indebted to William Doughten, of Philadelphia, made remittance by means of their check on Gilman, Son & Company, bankers, of New York. The check was forwarded from Philadelphia to New York, and when presented was taken up by Gilman, Son & Company with their own check on the Western National Bank, of New York. Before the latter check was presented Gilman, Son & Company failed.

<p>Error from Greenwood district court; Granville P. Aikman, judge.</p>

<p>Error from Montgomery district court; Thomas J. Flannelly, judge.</p>

<p>Error from Sedgwick district court; David M. Dale, judge.</p>

<p>Error from Ellsworth district court; Rollin R. Rees, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice, District Court — Burden of Proof — Demurrer to Evidence. When a party upon whom rests the burden of the issues introduces evidence which, uncontroverted, would establish a cause of action in his favor, and then introduces evidence which, prima facie, defeats his cause of action, and the opposite party demurs to the evidence, held, it is error for the court to overrule the demurrer and render judgment in favor of the party who produced the evidence.</p> <p>2. - Order of Proof — Defensive Evidence by the Plaintiff. Although it is bad practice to do so, yet, where no objection is made on this ground, the party who has the burden of the issues may introduce all the evidence pro and con upon every issue in the case. If, however, he introduces evidence which, unrebutted, defeats his cause of action, he does so at his peril.</p>

Error from Marion district court; E. L. King, judge. STATEMENT. This is a railway-crossing case. Defendant in error, while driving home from the town of Tampa, on the night of August 29, 1903, was struck by a freight-train at a crossing and thrown from his wagon and injured. He recovered judgment for $1175, and the railway company brings the case here on error.

<p>SYLLABUS BY THE COURT.</p> <p>Limitation op Action — EjeetmenN-Tax-deed Holder — Possession — Non-resident. An action of ejectment by a tax-deed holder out of possession does not become barred by the two-year statute of limitations while the land is vacant and unoccupied, nor while in the possession of, and occupied by, tenants, agents or employees of a non-resident owner who is absent from the state.</p>

<p>Error from Dickinson district court; R. L. King, judge.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

Error from Reno district court; W. H. Lewis, judge. STATEMENT. This action was brought by plaintiff in error in the district court, of Reno county against the defendant in error on a separate guaranty of a promissory note executed by one Compton to the Zeb. F. Crider Commission Company, and by said company indorsed and sold to the plaintiff.

<p>Error from Wilson district court; Leander Still-well, judge.</p>

<p>Error from Saline district-court; Rollen R. Rees, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Jurisdiction — Probate Court — Bill of Exceptions. Probate courts have authority to settle and sign bills of exceptions.</p> <p>2. Practice, Supreme Court — Evidence and Rulings Attached to the Bill — Identification. To preserve the evidence and rulings thereon they should be made a part of a bill of exceptions, and where the bill itself recites that certain evidence and rulings are attached to, and made a part of, the bill of exceptions, and they are so plainly identified that no doubt can arise but that they were settled by the court as a part of the bill of exceptions, they may be so considered.</p> <p>3. - Date of Proceedings — Construction of Record. From a statement in the record that the hearing began on a certain date, where each successive step in the case, including the settling and signing of the bill of exceptions, is introduced by the term “thereupon,” without naming any other date, it will be inferred that one step followed another without delay and that all occurred on the date, named in the entry.</p> <p>4. Practice, Probate Court — Concealment—Discovery—Scope of Proceeding. The summary proceeding in the probate court, under section 3002 of the General Statutes of 1901, for the discovery and to compel the delivery of property or effects of an estate suspected of having been concealed, embezzled, or conveyed away, is not a proper remedy to enforce the payment of a debt to an estate or to try contested rights to property as between the representative of the estate and others.</p> <p>5. - Concealment Not Being Shown, Proceeding Properly Discontinued. In a hearing upon a charge that a person who had given a promissory note, an asset of an estate, was concealing it, where it was developed that there was in fact no concealment of the note, and it was then proposed to extend the inquiry as to his liability upon the note, the court was justified in closing the investigation and discontinuing the proceeding.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Master and Servant — Personal Injuries — Assumption of Risk. In an action brought by an employee to recover for personal injuries sustained through the negligent omission of the employer to remove or cover a circular saw when not in use, findings that the plaintiff ¡knew that the saw was in motion and knew the effect of coming in contact with it will prevent his recovering judgment, when it is further found that the defendant was not negligent in any other respect.*</p>

<p>Error from Lyon district court; Dennis Madden, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Practice, Supreme Court — Personal Injuries — Prior Settlement — Verdict—Failure to Object— Sufficiency. Where in an action to recover damages for a personal injury the defendant pleads a settlement, and the only question submitted to the jury is whether or not the plaintiff was mentally responsible when he made such settlement, and all the evidence given on the trial and all the instructions given to the jury by the court are directed to this single question, and the jury return a verdict finding “for the defendant, that the plaintiff’s claim sued upon has been settled,” and no objection is made thereto, and no application is made to have the same made more specific before the jury is discharged, and the court enters judgment thereon sustaining such settlement, held, that in this court such verdict must be deemed sufficient.</p>

<p>Error from Rooks district court; Charles W. Smith, judge.</p>

<p>Error from Atchison district court; Benjamin F. Hudson, judge.</p>

<p>Error from Cowley district court; Carroll L. Swarts, judge.</p>

<p>Error from Allen district court; Oscar Foust, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fraternal Insurance — By-law—Intemperance—Benefit Certificate — Forfeiture. A by-law of a fraternal insurance society which provides that if any member “heretofore or hereafter adopted” shall become intemperate in the use of drugs the benefit certificate held by such member shall by such acts become and be absolutely null and void as to benefits, and all payments made thereon shall be thereby forfeited, does not apply to the case of a member who prior to the enactment of such by-law had become intemperate in the use of drugs and continued so thereafter.</p> <p>2. Practice, District Court — Action on Benefit Certificate— Answer and Proof — Variance. Where, in an action upon a benefit certificate issued by a fraternal insurance society, the answer sets up as a defense a ruling of the clerk of the local camp refusing an assessment on certain grounds, and that no appeal as provided by the by-laws of the society was taken, and upon the trial the evidence shows a refusal of the clerk to receive the assessment on the ground that the beneficiary had been suspended by the camp for another and different reason, there is a fatal variance between the answer and the proof as to this defense.</p> <p>3. -Direction of Verdict — Conflicting Evidence — Question for a Jury. Where plaintiff proves a prima facie case, and defendant introduces testimony that raises a conflict in the evidence, it is error for the court to direct a verdict against plaintiff, notwithstanding there may be some issues upon which the only positive testimony is that introduced by defendant. It is for the jury to determine the credibility of the witnesses and the weight of the testimony.</p>

<p>Error from Johnson district court; Winfield H. Sheldon, judge.</p>

<p>Error from Sedgwick district court; Thomas C. Wilson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Highways — Prescription—Condemnation under a Void Statute —Election of Remedies. The fact that one who claims to have acquired by prescription a right of way across the land of his neighbor institutes proceedings under a void statute to have the land condemned for a private road for his bene-' fit is not such an election of remedies as will preclude him from thereafter asserting such prescriptive right.</p>

Error from Clark district court; Edward H. Madison, judge. STATEMENT. Plaintiff in error brought an action in ejectment to recover certain land in Clark county. The briefs of plaintiff and defendant indicate that there was no controversy as to the facts. The land in question was owned by F. E. Chaddock, who was a non-resident of the state.

<p>Original proceeding in mandamus.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Attorneys — Champertous Agreement. An agreement of attorneys to carry on a litigation for a share of the amount to be recovered and to pay all costs and expenses is contrary to public policy, champertous, and void, and no re- . covery can be had thereon.</p> <p>2. -Preliminary Oral Negotiations — Implied Contract. Nor can they recover upon a preliminary negotiation which merged into the void written agreement, or upon quantum meruit for the services rendered under the illegal agreement.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Adverse Possession by a Tenant in Common. The law presumes the possession of a tenant in common to be the possession of all cotenants, and before such possession can become adverse there must be an actual ouster of all cotenants.</p> <p>2. -Inconsistent Positions Toward Cotenants by One in Possession. A tenant in common in possession cannot occupy the opposing positions of recognizing and purchasing the interests of some of his cotenants, and at the same time claim that he has ousted the other cotenants.</p> <p>3. - Condition Precedent — Ouster — Adverse Possession. Before a tenant in common can rely on an ouster of his co-tenants he must claim the entire title to the land in himself, and must hold the exclusive and adverse possession against every other person.</p>

<p>Appeal from Edwards district court; Charles E. Lobdell, judge.</p>

<p>Original proceeding in quo warranto.</p>

<p>Original proceeding in mandamus.</p>

<p>Error from Atchison district court; Benjamin F. Hudson, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Negligence — Injury to Telegraph Messenger — Liability of Express Company. Under the circumstances of this case it is held, that an express company engaged in unloading upon a truck express matter from a car standing upon a railroad-track in the union depot at Kansas City, Mo., was under no obligation to protect from injury, through a collision with the truck, a messenger of the Western Union Telegraph Company who was riding by permission of the pilot upon the steps of the rear car of an empty passenger-train backing into the depot upon an adjacent track which the truck obstructed.</p>

Error from Sedgwick district court; Thomas C. Wilson, judge. STATEMENT. The plaintiff in error seeks by this proceeding to reverse a judgment obtained against it by Ambrose Fuller for personal injuries which resulted to him from falling over a semaphore wire in its yards in the city of Wichita. In 1879 the right of way now owned by the Atchison, Topeka & Santa Fe railroad through the city of Wichita was condemned for that purpose.

<p>Error from Jewell district court; Richard M. Pickler, judge.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>Error from Butler district court; Granville P. Aikman, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Railroads — Non-delivery of Goods Consigned — Conversion. It is the duty of a railway company which has received from the owner for carriage a quantity of goods consigned to the shipper’s order to deliver in accordance with such order, and only in accordance therewith; and a failure or refusal, without lawful excuse, so to deliver will render the carrier liable in conversion for the value of the goods.</p> <p>2. - Order to Divert to Another Destination- — -Demand for Delivery. An order from the shipper of goods consigned to the shipper’s order duly accepted by the carrier and noted on the original bill of lading by its agent, directing a diversion of the goods from one destination to another, is equivalent to a demand for delivery.</p> <p>3. -Failure to Divert Not Excused. The fact that a person to be notified of the arrival of goods consigned to the shipper’s order takes them from the carrier’s possession without its knowledge or consent, and detains them in his own warehouse, will afford no justification for the carrier’s failure to comply with an order from the shipper diverting the consignment.</p> <p>4. - Accession — Withholding Delivery of Consignment. The general rule that an accession falls to the principal applies to sacks supplied by a dealer in flour to a manufacturer to be used in the production of sacks of flour for the market; and the claim of a dealer to the sacks of a car-load of sacked flour which a carrier has received from the manufacturer for transportation according to the shipper’s order will not justify the carrier in withholding delivery according to such order.</p> <p>5. - Representations of Claimant — Refusal to Deliver. The fact that such a claimant represents to the carrier that he expects to be able to arrive at an understanding with the shipper within a few days will not justify it in withholding delivery according to the shipper’s order.</p> <p>6. - Conversion — Election by Consignor — Effect. After a shippers of goods consigned to the shipper’s order has elected to treat the property as converted on account of the carrier’s wrongful neglect or refusal to deliver according to his order, and has notified the carrier of such election, he is no longer under obligation to defend suits relating to the property or to aid the carrier in disposing of it.</p>

<p>Error from Franklin district court; Charles A. Smart, judge.</p>

Error from Smith district court; Richard M. Pickler, judge. STATEMENT. This was an action brought by Clinkenbeard against the railway company for damages on account of personal injuries received by him in being struck by the pilot-beam of a moving engine in the yards of the company at Smith Center, Kan.

<p>Error from Smith district court, Richard M. Pickler, judge.</p>

<p>Error from Decatur district court; Abel C. T. Geiger, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Fire-insurance — “Iron-safe” Clause — Non-waiver Agreement — Defense to Policy. Where a stock of merchandise is insured against fire by a policy containing what is known as the “iron-safe” clause, requiring certain books and documents pertaining to the business to be kept at night in an iron safe, and a fire occurs in which some of the documents are destroyed by reason of the failure of the insured to comply with the terms of such clause, the insurance company does not lose the right to make a defense upon that ground by requesting the production of other evidence to supply that so destroyed, and by making an examination thereof with a view to determining the amount of the loss, where before the insured is put to any inconvenience or expense in that connection he enters into a written agreement with the agent of the insurance company providing that such examination should not be deemed a waiver of any of its rights under the policy.</p> <p>2. -Parol Evidence — Written Agreement. In the circumstances stated in the foregoing paragraph the liability of the company is not affected by the fact that before such non-waiver agreement is signed the representative of the company tells the insured what documents would be desired for examination in lieu of those destroyed, and also tells him that if such documents are produced by him after the execution of such agreement the loss will be paid.</p>

Error from McPherson district court; W. H. Lewis, judge. STATEMENT. Plaintiff in error Ida M. Oliver brought suit in the district court of McPherson county against the defendant in error for the partition of a tract of land in that county, and, they not joining in the petition, she made her brothers and sisters parties defendant. Some of the brothers and sisters filed answers praying for the partition, and others entered no formal appearance.

<p>Error from Doniphan district court; William I. Stuart, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Agency — Profits Illegally Retained by an Agent. An agent will not be permitted to retain profits derived from the management of the subject-matter of his agency in violation of his duty as such agent.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Municipal Corporations — Injury to Traveler■ — Defective Alley. An essential fact to a recovery of damages against a city by one who alleges that he was injured in traveling through an alley within the city is that the designated place be within the corporate limits and one which the city is bound to maintain and make safe for public travel.</p> <p>2. - Judicial Notice — Location of Alley. The court cannot take judicial notice that an alley between two designated streets is within the territorial boundaries of the city of Topeka.</p> <p>3. -Boundaries — Evidence. As cities of the first class are given authority outside of the corporate limits in regard to preventing and abating nuisances, and the making of quarantine and other regulations to prevent the introduction of contagious diseases into the city, the fact that a city may have caused the removal of a manure pile from a certain place does not of itself show that such place was within the city.</p>

Error from Shawnee district court; Z. T. Hazen, judge. STATEMENT. The Bennett Commission Company sold and contracted to deliver to the Taylor Grain Company, on or before June 21, 1903, 10,000 bushels of corn in the car, on the track in North Topeka.

<p>SYLLABUS BY THE COURT.</p> <p>1. Contracts — Bailment—Sale. If the owner of cattle deliver them to another to be fed under an express agreement that the only interest of such other person in the cattle is what he may put on them, the transaction is a bailment and not a sale.</p> <p>2. --- Agreement of the Parties — Construction. Whenever parties themselves define the limits of their rights and obligations in respect to the ownership, custody and care of a herd of cattle the compact controls, and there is no room for the application of a legal theory which might govern in the absence of an express agreement.</p> <p>3. Chattel Mortgages — Interest of Bailee. If the bailee of cattle under an agreement like that referred to in paragraph 1 attempt to mortgage his interest in them at a time when they have gained nothing, the mortgage is void for .want of a thing to be mortgaged.</p> <p>4. --■ Property to be Created or Acquired. In order that a chattel mortgage may affect property to. be created or acquired by the mortgagor subsequently to the making of the instrument it must expressly declare such to be its purpose, and when the property is brought into existence, or is acquired by the mortgagor the mortgagee must take actual possession of it before the claims of third persons attach.</p>

<p>Error from Bourbon district court; Walter L. Simons, judge.</p>

<p>Error from Rawlins district court; Abel C. T. Geiger, judge.</p>

<p>Error from Allen district court; Oscar Foust, judge.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Petition — Indefiniteness—Demurrer—Objection to Evidence. Indefiniteness and informality in a pleading cannot be reached by a demurrer, nor by an objection to the introduction of evidence.</p> <p>2. -Presumption. Considerable latitude of presumption is allowed in sustaining a petition where issue is joined upon it, and it is only attacked at the beginning of the trial by an objection to the admission of any testimony.</p> <p>3. -Literal Interpretation. Upon such an objection the pleading should be liberally interpreted, and if upon any fair construction it can be held to state a cause of action the objection should be overruled.</p> <p>4. Attorneys — Malicious Negligence — Client’s Reputation Injured — Petition Sufficient. Under this rule of interpretation, a petition which in substance charges the defendant with acts tending to destroy the character and reputation of the plaintiff, a person who was mentally weak and unable to take care of himself, and that while plaintiff was in such condition and under charges of professional misconduct the defendant was employed to defend and protect him in a disbarment proceeding, but that the defendant filed no answer and made no defense, in consequence of which a judgment by default was taken against the plaintiff, and which avers that the omission and neglect were malicious and intended to accomplish a selfish and unlawful purpose of the defendant, and to discredit and injure the plaintiff, states a cause of action.</p>

Original proceeding in mandamus. STATEMENT. The plaintiff, Mamie Richardson, presents her petition for a writ of mandamus to compel the board of education of Kansas City, Kan., and M. E. Pearson, superintendent of the high school, to permit her to attend the forenoon sessions of the high school.

<p>Error from Labette district court; Thomas J. Flan-NELLY, judge.</p>

<p>1. Judgments — Order Staying Execution — Termination. Where bonds were given by a judgment debtor to secure a stay of execution pending the hearing of a petition to set aside certain judgments, and the court granted such stay “until the further order of the court,” and afterward, upon the denial of the petition, made an order staying execution for fifty days, it was held that the making of the second order terminated the first, whether or not new bonds were required or given.</p> <p>2. Practice, District Court — Limitation of Action. It was further held that in such case the statute of limitation began to run against an action on the first bonds either when the petition to set aside the judgments was denied or when the second stay order expired.</p>

<p>Error from Douglas district court; Charles A. Smart, judge.</p>

<p>1. Contracts — Compromise of Suit — Substitution of Parties— Settlement — Release. Pending an action to recover possession of real property the defendants therein conveyed their interest in the land and delivered the possession thereof to defendant herein. Afterward a compromise was effected between the parties to the original action, and an agreement was also signed by them and the present defendant by which that action was dismissed, the defendants therein were absolved from further liability, the present defendant was to be substituted for the original defendants in subsequent . stages of the controversy respecting the land, and all rights of plaintiffs for damages for wrongful detention by the present defendant from the date of the above-mentioned conveyance to him were expressly' reserved. It was held that by these agreements plaintiffs did not waive or settle any right of action they had against the defendant growing out of his wrongful possession of the property from the date specified.</p> <p>2. Damages — Wrongful Detention of Real Property — Demurrer to Petition. In an action to recover damages for the detention of real property a petition was held good against demurrer although it showed that the plaintiff had been dispossessed by the defendant’s grantor and had never regained possession.</p>

<p>Error from Bourbon district court; Walter L. Simons, judge.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>Error from Johnson district court; Winfield H. Sheldon, judge.</p>

<p>Fraud — Misrepresentations—Inducement to Contract — Subsequent Written Agreement. Certain statements made by defendant for the purpose of procuring the execution of an oil- and-gas lease, even though false, held not to entitle plaintiif to have the lease canceled on the ground of fraud, a written contract having been subsequently executed by the parties.</p>

<p>1. Petition — Personal Injury — Allegations Sufficiently Definite. The allegations of a petition in an action against a city for damages resulting from a defective sidewalk held to be sufficiently definite as to the place where plaintiff received his injuries, and as to their nature and extent.</p> <p>2. Municipal Corporations — Defective Sidewalk — Contributory Negligence. It was held not to be contributory negligence per se for one to walk upon a sidewalk which he knows is defective.</p> <p>3. Practice, District Court — Instructions. It was held not error to refuse to give proper instructions requested by the defendant, because the court gave other instructions that properly stated the law as to the points involved.</p>

<p>' Error from Hamilton district court; William Easton Hutchison, judge.</p>

<p>1. Practice, District Court — Demurrer to Evidence. The rule applied that in considering a demurrer to plaintiff’s evidence the trial court should take into consideration only those facts and those inferences of fact which are favorable to the plaintiff.</p> <p>2. Master and Servant — Injury to Employee. In a personal-injury case, where a servant was injured while operating defendant’s machinery, judgment for plaintiff affirmed.</p>

<p>Error from Linn district court; Walter L. Simons, judge.</p>

<p>Appeal from Cherokee district court; William B. Glasse, judge.</p>

<p>1. Jury and Jurors — Foreman—Signing of Verdict. A joint verdict, consisting of three paragraphs, was signed at the end by the foreman. It was held that he thereby signed the verdict as to each of the defendants.</p> <p>2. Intoxicating Liquors — Title of Act Construed. The title of chapter 232 of the Laws of 1901 held to be broad enough to cover the prohibition of unlawful sales of intoxicating liquor.</p>

<p>Error from Shawnee district court; Z. T. Hazen, judge.</p>

<p>Street-railways — Injury to Traveler — Demurrer to Evidence— Question for a Jury. Where the defendant’s motor-man persisted in running a street-car toward plaintiff’s frightened horse and unnecessarily and loudly sounding the gong, the danger to plaintiff being apparent, it was held that it could not be said as a matter of law that the motor-man was free from culpable negligence.</p>

<p>Agency — Authority—Question of Fact — Condition Precedent. Judgment reversed because the fact of the agent’s authority to bind the principal was not shown.</p>

<p>Error from Riley district court; Sam Kimble, judge.</p>

<p>Error from Johnson district court; Winfield H. Sheldon, judge.</p>

<p>1. Contracts — Sale of Shoes — Dispute as to Quality — Acceptance. Plaintiff’s attempt to sell some of the shoes that were salable while waiting for defendant’s agent to adjust plaintiff’s claim that the consignment was defective held not to amount to an acceptance of the entire lot.</p> <p>2. - Sample — Evidence. Evidence being admitted without objection that the shoes were not equal to the sample, it was held proper for plaintiff to produce one of the shoes and point out the defects.</p>

<p>Railroads — Setting Out Fire — Evidence and Verdict. In an action for damages caused by a fire started by defendant’s engine, judgment for plaintiffs affirmed.</p>

<p>1. Intoxicating Liquors — Sale by a Physician. C. purchased liquor from defendant, a physician, with money furnished by L. for that purpose. It was held that, so far as defendant is concerned, this was a sale to C., and that, the court having submitted to the jury the question whether the liquor was sold as a beverage or administered, a judgment of conviction for an illegal sale would not be disturbed.</p> <p>2. Practice, Supreme Court — Retaxing Costs. Defendant, who was acquitted on three of four counts, was charged with all the costs of the prosecution. It was held that he had no cause to complain here, no motion to retax costs having been made.</p>

<p>Evidence — Transactions Had with Deceased Persons. In an action upon a promissory note the testimony of a witness, not a party to the action, that he was the principal upon the note, that the defendant was merely a surety, and that in the lifetime of the plaintiff’s intestate the time had been extended upon the note for a valuable consideration without the knowledge or consent of the defendant, was held not to be within the rule (Gen. Stat. 1901, § 4770) forbidding a party to testify in his own behalf in certain cases in respect to personal transactions had with a deceased person.</p>

<p>1. Practice, District Court — Conduct of Counsel — New Trial. Improper conduct of counsel for plaintiff that did not result in any prejudice to the rights of the defendant held not to afford the latter a ground of complaint because a new trial was not granted.</p> <p>.2. Practice, Supreme Court — Assignments of Error — Briefs. Alleged errors not considered because they were not set out in plaintiff in error’s brief, as required by rule 10 of this court. (See 66 Kan., p. vii.)</p>

<p>Error from Sedgwick district court; Thomas C. Wilson, judge.</p>

<p>Error from Sedgwick district court; THOMAS C. Wilson, judge.</p>

<p>Error from Allen district court; Oscar Foust, judge.</p>

<p>Original proceeding in quo warranto.</p>

<p>Error from Sumner district court; Carroll L. Swarts, judge.</p>

<p>Appeals from Allen district court; OSCAR FOUST, judge.</p>

<p>Original proceeding in quo warranto.</p>

<p>Error from Pawnee district court; Charles E. Lob-dell, judge.</p>